Arizona Democratic Senator Mark Kelly is taking legal action against the Pentagon in response to an effort to downgrade his retirement rank and pay. On Monday, his lawyers urged a federal judge to block the Defense Department’s actions, which they argue violate his constitutional rights. This case centers around Kelly’s recent public statement advising U.S. troops that they are not obligated to follow illegal orders.
Background of the Dispute
In a 35-page legal filing, attorney Paul J. Fishman contended that Defense Secretary Pete Hegseth is attempting to penalize Kelly for his speech, which promotes good order and discipline within the military. Hegseth’s actions, according to Fishman, not only infringe upon Kelly’s rights but also misinterpret the principles of military conduct.
“As a decorated combat veteran and member of the Senate Armed Services Committee, Senator Kelly is deeply committed to the necessity of good order and discipline in the armed forces,” Fishman stated. He emphasized that Kelly’s speech, which reminds servicemembers of their obligation not to follow unlawful orders, should be supported rather than suppressed.
Fishman challenged the Department of Justice’s recent assertion that the federal court has no jurisdiction over such military matters. He argued that the claim disregards established legal precedents that allow judicial review of military disciplinary actions.
Details of the Pentagon’s Actions
Earlier this month, Secretary Hegseth announced that the Pentagon had initiated steps to alter Kelly’s retirement status. In a social media post, he asserted that being a sitting U.S. Senator does not exempt Kelly from accountability, warning that further actions could follow if the senator continues to violate military conduct standards.
The Defense Department issued a letter of censure stating that Kelly’s participation in a video undermined the military chain of command and encouraged disobedience. In the video, Kelly, along with other Democratic lawmakers, emphasized that military personnel have the right to refuse illegal orders, stating, “No one has to carry out orders that violate the law or our Constitution.”
Participants in the video included Senators Elissa Slotkin and representatives Jason Crow, Chris Deluzio, Chrissy Houlahan, and Maggie Goodlander, all of whom have military or intelligence backgrounds. They collectively urged vigilance among servicemembers during difficult times.
Legal Arguments and First Amendment Implications
Fishman has criticized the Trump administration’s position, which suggests that retired military personnel lack constitutional protections for their speech. He argues that this perspective sets a dangerous precedent that could inhibit the rights of over two million retired servicemembers without any judicial oversight.
Throughout history, retired military officials have engaged in public discourse regarding military policy. Fishman pointed to examples ranging from Alexander Hamilton criticizing President John Adams to retired generals calling for accountability during the Iraq War. He contends that Kelly’s situation is consistent with this tradition of free expression among retired service members.
As of now, Senior Judge Richard J. Leon, appointed by President George W. Bush, was set to hear the case on January 31, 2024. However, the hearing has been rescheduled to February 3, 2024, due to inclement weather.
Senator Kelly’s legal challenge highlights ongoing tensions between military regulations and constitutional rights, raising significant questions about the boundaries of free speech for retired military personnel and public officials.
